Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120142643 Agency No. ARPICAT10JUN03587 DECISION Complainant filed a timely appeal with this Commission from a final decision by the Agency dated June 30, 2014, finding that it was in compliance with the terms of a July 1, 2014 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND On July 1, 2014, Complainant and the Agency entered into a negotiated settlement agreement to resolve a matter that had been pursued through the EEO complaint process. The July 1, 2011 settlement agreement provided, in pertinent part, that: 3. The Army agrees to: a. Change the Complainant's rating of "Unsuccessful" given by [Major] to "Fully Successful." By letter to the Agency dated May 5, 2014, Complainant alleged that the Agency breached the settlement agreement. Specifically, Complainant alleged that, on May 5, 2014, he received an investigative report on another EEO complaint he had filed, and found that the "Unsuccessful" performance rating was being used as evidence in that case. In its June 30, 2014 final decision, the Agency found no breach. In support of this determination, the Agency provided a copy of Complainant's performance rating for the period ending June 30, 2010, from his official personnel file reflecting that he received a "Fully Successful" rating. The Agency also references a memorandum in the record from the Agency Attorney's memorandum. Therein, the Agency Attorney stated based on his email correspondence with the Human Resources Specialist (Specialist) at the Agency's Picatinny Arsenal, New Jersey Civilian Personnel Advisory Center, the record reflects that performance rating at issue was changed in Complainant's Official Personnel File. The Agency Attorney further stated "it is true that there was an un-altered copy contained in the organization's unofficial local file. This was an oversight and has now been destroyed. The [settlement agreement] does not specify that every single file containing the performance rating should be changed. A reasonable interpretation of the [agreement] would be that the Complainant's 'official' record be changed. The fact that there was an oversight in an 'un-official' does not amount to a violation." The Agency concluded that the fact that there was an oversight in an "unofficial" office file does not amount to a violation of the settlement agreement. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984). In the instant case, we find that the Agency failed to fully comply with the terms of the settlement agreement. Provision 3.a. of the agreement provides for an affirmative Agency obligation to change Complainant's performance rating from "Unsuccessful" to "Fully Successful" for the period ending June 18, 2010. It is undisputed that the required change was made in Complainant's official personnel file. However, it appears that a copy of the original rating was retained in an "unofficial" file at the facility and was purportedly referenced in a 2014 investigative report on an unrelated EEO complaint. The Agency concedes this "unofficial" copy was retained. We find that the Agency's continued use of the "Unsuccessful" rating in official Agency business constituted a breach of the settlement agreement. We are not persuaded by the Agency's argument that it only had to expunge the original rating from Complainant's official personnel file. Once the Agency agreed to change Complainant's rating, it was reasonable for Complainant to expect that the original rating would not continued to be used or referenced by the Agency. Although the Agency Attorney has asserted that this "oversight" has now been corrected and the copy of the original rating in the "unofficial local file" has been destroyed, we will remand the matter back to the Agency to ensure full compliance with the agreement Accordingly, the Agency's determination that it was not in breach of provision 3.a. of the July 1, 2011 settlement agreement is REVERSED and the matter is REMANDED to the Agency for compliance with the following Order. ORDER Within thirty (30) calendar days of the date this decision becomes final, the Agency shall expunge any copy or reference to the "Unsuccessful" rating Complainant received for the rating period ending June 30, 2010, from all Agency records. Those same records shall reflect that Complainant received a "Fully Successful" rating for that period. Moreover, to the extent that documents (such as the investigative report referenced by Complainant) have been released by the Agency since the execution of the settlement agreement that refer to the "Unsuccessful" rating, those documents shall be corrected. An appropriate Agency official shall prepare a statement verifying that these actions have been executed and a copy shall be sent to Complainant and the EEOC Compliance Officer referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations December 22, 2014 __________________ Date 2 0120142643 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142643